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GENERAL TERMS AND CONDITIONS OF SALE
§ 1 General
- The terms and conditions set out below shall form part of the agreement concluded with us.
- Our terms of sale apply exclusively; we hereby object to any counter confirmation, counter offer or other reference by the Buyer to its general terms and conditions; any dissenting terms and conditions of the Buyer shall only apply if we have confirmed the same in writing. Our GTC also apply if we supply the goods to the customer without reservation, even if we are aware of the fact, that the GTC of the customer are conflicting or deviating from ours.
- All agreements between us and the customer made for the execution of this contract shall be go down in writing herein.
- In each case, individual agreements made with the customer have priority over these GTC. A written agreement or our written confirmation is decisive for the content of such agreements.
- Our General Terms and Conditions of Sale apply only to companies within the meaning of §§ 14, 310 paragraph 1 BGB.
- Our General Terms and Conditions of Sale shall apply in accordance with the most recent version and to all subsequent transactions without any need of express reference thereto or agreement thereon at the conclusion of such transaction.
- The Buyer may not assign any claims arising from transactions with us without our written approval.
§ 2 Offers; Orders
- Our offers shall not be binding; in particular with reference to quantities, price and delivery time.
- If the order can be qualified as an offer according to § 145 BGB, we are in the position to accept it within two weeks. Orders placed by the Buyer shall not be regarded as accepted until these have been confirmed to us in writing.
- If we should fail to confirm an agreement in writing which we have entered into verbally or in a telephone conversation, then our invoice shall be regarded as confirmation.
§ 3 Prices
- Unless the order confirmation states otherwise, our prices are “ex works” excluding packaging and shipping; these will be charged separately.
- Our prices shall exclude any statutory VAT which shall be payable at the date of delivery.
- A deduction of cash discount requires a special written agreement.
- Unless stated otherwise in the order confirmation, the purchase price is payable net (without deduction) within 10 days of the invoice date of the bill. The legal rules concerning the consequences of late payment stay untouched.
- A right to set-off only refers to the customer if his counterclaims have been legally established, undisputed or acknowledged by us. As far as his counterclaim is based on the same contractual relationship, he also has a right of retention.
- We are entitled, without giving reasons, first to respond to a payed bill with a partial delivery; further on we hold the right to deliver cash-on-delivery or to demand payment in advance.
- If the customer does culpably not accept our delivery in a reasonable time limit set by us, we are entitled to charge a contractual penalty in the amount of 25% of the agreed contract sum.
§ 4 Delivery time
- Stated delivery times are not binding unless expressly agreed otherwise in writing.
- The beginning of the quoted delivery time assumes the clarification of all technical questions.
- To monitor our delivery obligation, it requires a timely and proper fulfillment of the obligation of the customer. The dilatory plea of breach of contract is reserved.
- In case of deviation from the agreed delivery time, there may follow a new offer on our part; this modified order confirmation is then – according to § 150 II BGB – classified as a new offer with simultaneous rejection of the previous one. Hereafter, the custumer can accept this new offer – either express or implied – in accordance with the given time limit according to § 147 II BGB.
- Our delivery obligation is always subject to punctual and proper self-supply.
- Inability to supply caused by majeure force or due to unforeseen events such as orders by the authorities, subsequent cease of import or export options as well as our own supply reservation according to paragraph (4) release us for the duration and the extent of their influences from the obligation to keep to the agreed delivery times.
- If the delivery is quite impossible for operational or non-operational reasons, there will come into force an exemption from the obligation to deliver. If the customer comes in default of acceptance or if he violates culpably other duties to cooperate, we are entitled to demand the damages corresponding to these causes, including any additional expenses. Further claims or rights remain reserved.
- If the requirements of paragraph (3) apply, the risk of an accidental loss or accidental deterioration of the goods will pass at to the customer in the time, in which he gets in his default of acceptance or his debtor’s delay.
- We are liable according to the statutory provisions if the concerning contract is a bargain according to § 286 II No. 4 BGB or § 376 HGB. We are also liable according to the statutory provisions, if, as a consequence of any delay in delivery caused by us, the customer is entitled to claim that his interest on the performance of the contract has omitted.
- Further on, we are also liable according to the statutory provisions if the delay in delivery is based on a willful or grossly negligent breach of contract by us; any fault of our representatives or vicarious agents is attributable to us. If the delay in delivery is due to a willful us grossly negligent breach of contract, our liability for damages is limited to the predictable and typically occurring damage.
- We are also liable according to the statutory provisions, as the delay of delivery delay to the culpable breach of an essential contractual obligation by us; in this case the liability for damages is limited to foreseeable, typically occurring damages.
- In the case of delayed delivery, we are liable for each completed week of delay in the context of a lump sum compensation in the amount of 3% of the delivery fee, but not more than 15% of the delivery value. Further statutory claims and rights of the customer are reserved.
§ 5 Passing of the risk
- Unless the order confirmation states otherwise, delivery occurs “ex works”. Shipping shall be at our choice. Additional expenditure, such as a required special transport, will be provided to the customer.
- Our goods are always shipped insured and in any case at the risk of the buyer; any costs arising from this will go at the expense of the customer.
§ 6 Duty to Inspection and Objection
- The customers warranty claims presuppose that he has properly fulfilled his obligation of inspection and reprimand according to § 377 HGB.
- If there is a defect in the purchased goods, the customer is entitled to choose between two forms of subsequent performance within our period for claims: a remedy of defects or a delivery of a new defect-free good.
- The notification shall be made by no later than the expiry of the working day on which the delivery of the goods to the agreed destination or on which possession of the goods has been taken. In the complaint of a latent defect, the gem despite proper initial examination. paragraph (1) is initially remained undetected, but applies a different time scheme, according to which the complaint must be made at the end of the following to the finding business day at the latest within two weeks after delivery of the goods or their acquisition.
- The detailed notice shall be delivered to us within the aforementioned deadlines in writing, by telegraph, telex or fax. Any notice by telephone conversation shall not be accepted. Any notice to sales representatives, commission agents or agents shall not be valid.
- No objections with regard to quantities, weight or packaging of the goods shall be possible unless a note has been placed on the delivery note or a consignment note or a receipt of acknowledgement in accordance with subparagraph (1) (a) above. Moreover, any right to object shall cease to exist, when the Buyer has mixed, used or resold the goods delivered or shall have started its processing.
- Any good for which objections shall not have been raised in accordance with the procedures and deadlines set out above shall be regarded as approved and accepted.
- In case of repair or replacement, we are obliged to take all necessary for the purpose of subsequent expenditure, in particular transport, travel, labor and material costs, provided that these costs does not increase because of the fact that the purchased goods have to be supplied to another place as the place of performance.
- If subsequent performance fails, the customer is entitled to choose to demand withdrawal or reduction.
- We are liable according to the statutory provisions, if the customer claims damages based on intent or gross negligence, including intent or gross negligence of our representatives or vicarious agents. If we are not accused of intentional breach of contract, the damages liability is limited to foreseeable, typically occurring damage.
- We are liable according to the statutory provisions if we culpably infringe any essential contractual obligation; likewise, the liability for damages is limited to foreseeable, typically occurring damage.
- If the customer is moreover entitled to a claim for damages instead of performance because of a negligent breach of duty, our liability to replacement shall also be limited to the foreseeable, typically occurring damage.
- The liability for culpable injury to life, body or health remains unaffected; this also applies to the non-contractual liability of the lemon law.
- If not regulated otherwise, liability is excluded.
- The limitation period for warranty claims is 12 months, calculated from the transfer of risk.
- The period of limitation in case of delivery recourse referring to §§ 478, 479 BGB remains unaffected; it will be five years calculated from the delivery of the defective good.
§ 7 Limitation of Liability
- Any further liability for damages as provided in § 6 is excluded regardless of the legal nature of the asserted claim. This applies in particular to claims for damages from fault at the time of reaching agreement, from other breaches of duty or from tort claims pursuant to § 823 BGB.
- The limitation in paragraph (1) shall also apply if the customer requires a compensation for futile expenditures instead of a normal compensatory damage claim.
- Inasmuch as the liability for damages against us is excluded or limited, this shall also apply to the personal liability for damages of our employees, workers, staff, representatives and vicarious agents.
§ 8 Retention of Title
- We shall retain full title of the goods that have been delivered until the Buyer has discharged all claims arising from the business relationship. If the Buyer shall be in breach of contract, in particular in payment default, then it shall, upon our demand, immediately return to us all goods delivered under retention of title and assign to us any repossession claims against any third party in conjunction with such goods. Any repossession or enforcement proceedings with regard to the goods delivered under retention of title shall not be regarded as a rescission of this Agreement.
- The customer is obliged to take good care of the goods; in particular, he is obliged to insure the goods at original value against damages caused by fire, water and theft. If maintenance and inspection work is required, the customer must carry this out at his own expense.
- In the event of any third party action against our goods delivered under retention of title or any receivables assigned to us, the Buyer shall notify such party of our right and immediately inform us about such action, for that we are able to bring a suit according to § 771 ZPO. If the third party is unable to reimburse us for the judicial and extra-judicial costs of an action pursuant to § 771 ZPO, the customer shall be liable for any loss incurred by us.
- The Buyer shall have the right to dispose of the goods delivered by us within the ordinary course of business; he assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim, which he obtains out of the resale to his customers or third parties, regardless of whether the goods have been resold without or after the reprocessing. To collect this debt, the customer remains authorized even after the transfer. Our authority to collect the claim ourselves remains unaffected. However, we sign up not to collect the claim as long as the customer meets his payment obligations from the collected proceeds and as long as he is not in default of payment and has no application to open insolvency. If one of these cases occurs, we can demand that the customer gives us the assigned claims and tells us their debtors, also that he provides us all other necessary information and the relevant documents and that he communicates the assignment to the debtors (third parties).
- Moreover, we may withdraw the sales authority of the Buyer through written notice if it shall be in breach of any obligation owed to us and shall in particular be in payment default or we shall become aware of other incidents that give rise to doubts about its creditworthiness.
- The Buyer’s right to process the delivered goods shall also be subject to the limitations set out in subsection (5) above. The Buyer shall not acquire title to the fully or partly processed goods; the processing shall be free of charge for our benefit as Manufacturer in the sense of § 950 BGB. If we should lose our rights under the retention of title for any reason, then its is hereby agreed between us and the Buyer that we shall acquire title upon processing of the goods and that the Buyer himself shall remain custodian of the goods which shall be free of charge.
- If the goods in which we have retained title shall be inseparably assembled or mixed with goods that are third party property, then we shall acquire co-title in the new goods or the mixed stock.
- The processing or transformation of the goods by the customer is always done for us. If the goods are processed with other objects not belonging to us, we acquire co-ownership of the new item in proportion to the value of the goods (final invoice amount including VAT) to the other processed items at the time of processing. The same as for the goods delivered under a retention of title applies for the goods created by processing.
- If the goods in which we have retained title shall be inseparably assembled or mixed with goods that are third party property, then we shall acquire co-title in the new goods or the mixed stock in proportion to the value of the goods (final invoice amount, including VAT) to the other processed items at the time of processing. If the processing is such a way that the object of the customer is to be regarded as the main item, it is agreed that the customer shall transfer proportionate co-ownership to us. In this case, the customer shall keep the sole- or co-ownership for us.
- The customer also assigns to us his claims, which he got from a connection of the good with a plot of land by a third party, to secure our claims against him.
- We agree to release the securities due to us on demand of the customer insofar as the realizable value of our collateral exceeds goes beyond the secured claims by more than 10%; the choice of the securities to be released is ours.
§ 9 Place of Jurisdiction
- Our office shall be the place of jurisdiction; however, we are entitled to sue the customer at his place of residence.
- The laws of the Federal Republic of Germany shall apply. International purchase laws shall not apply.
- Unless the order confirmation provides otherwise, our business is fit for all disputes arising from the contractual relationship, the place of performance.
§ 10 Final Provisions
- The invalidity of any provision of these general terms and conditions of sale shall not affect the validity of the other provisions. Invalid provisions shall be deemed to be replaced by such valid provisions that shall be suitable to implement the economic purpose of the deleted provision to the greatest extent possible.
- We have stored data of the Buyer on accordance with the German Data Protection Act and we will not share your Data to third party. For more information please consult our privacy statement.
Alternative Dispute Resolution in accordance with Art. 14 (1) ODR-VO and § 36 VSBG:
The european commission provides a platform for online dispute resolution (OS) which is accessible at http://ec.europa.eu/consumers/odr/. We are not obliged nor willing to participate in dispute settlement proceedings before a consumer arbitration board.